Purchase notices – Service of four consecutive notices – Appellant local planning authority serving response to fourth notice indicating they were not willing to comply – Secretary of state declining to confirm fourth notice – Whether other notices remaining valid – Lands Tribunal holding notices valid and deemed to be confirmed – Whether notices impliedly withdrawn – Whether more than one notice extant at any given time – Appeal allowed
In March 2003, the respondent served a purchase notice (notice A) on the appellant council, pursuant to section 137 of the Town and Country Planning Act 1990, requiring them to purchase his land. He contended that following a refusal of planning permission, the previous year, the land had been rendered incapable of reasonably beneficial use and could not become so by carrying out any development. Further purchase notices (notices B, C and D) were served in May, June and September 2003 respectively. Notice B was stated to amend errors in notice A. Notice C, which was served following a letter from the appellants indicating that notice A was invalid for various reasons, contained further amendments that were stated to be made “in accordance with your instructions”. Notice D was served following a meeting with the appellants’ senior litigator, to correct one further matter that he had pointed out. The appellants then served a response notice in respect of notice D, under section 139(1) of the Act, indicating that they were unwilling to comply with the purchase notice. The matter was referred to the first secretary of state, who decided not to confirm that notice on the ground that the land was reasonably capable of beneficial use in its existing state.
The respondent asserted that notices A to C remained extant and that, owing to the lack of any confirmation of them or notification of a decision not to confirm within the statutory time limit, they were now deemed to be confirmed by virtue of section 143(2) of the Act, such that he was entitled to compensation. Before the Lands Tribunal, the appellants argued that each of the earlier notices had been impliedly withdrawn upon service of the next. They submitted that only one valid notice could be extant at any given time. Rejecting those submissions, the tribunal found that the 1990 Act did not limit an owner to one notice at a time and that notices A to C were valid, with B and C taking effect as amendments to A. It found that the notices were the subject of deemed confirmation and that it accordingly had jurisdiction to determine the compensation payable. The appellants appealed.
Held: The appeal was allowed.
(1) The 1990 Act made no express provision for amending purchase notices and no such right arose by necessary implication. An ability to amend would give rise to undesirable uncertainty.
(2) The statute did not prevent an owner from serving a second notice without prejudice to its contention that the first notice was valid. The language of the statute did not indicate that an owner could not serve more than one purchase notice, and no necessity arose to construe it as having that effect. In practice, it was unlikely that an owner would shower a local planning authority (LPA) with a series of notices in the hope that one would slip through unnoticed.
(3) Accordingly, the question of whether an earlier notice was impliedly withdrawn by the service of a later one would depend upon the circumstances of each case and the terms of the later notice. Where a second notice was served without any reference to the first, the owner would, ordinarily, be taken to have withdrawn the first notice, especially where the second notice had been served in response to the LPA’s objections. However, an owner could make it clear that it was not withdrawing the first notice, by stating that it served the second without prejudice to its contention that the first was valid and would continue to be relied upon. Whether an implied withdrawal had been made had to be determined objectively on the basis of what the owner said and did. In the instant case, notices A to C had been impliedly withdrawn. Each subsequent notice had purported to be a fresh notice, differed from its predecessor and contained nothing to indicate that the respondent was reserving his rights in relation to the preceding notices.
(4) A purchase notice would not be deemed to have been confirmed at the end of the relevant period unless the LPA has sent it to the secretary of state, under section 139(4). Where the LPA did not operate section 134(9), and the secretary of state did not receive the purchase notice in time to enable him to respond within the relevant period, no deemed confirmation could take place. Instead, the appropriate remedy for an owner was an application for judicial review to enforce the LPA’s duty to respond. If the LPA raised objections to the validity of a notice, the owner could protect its position by serving a further notice or, if it took a stand on the validity of the first notice and it was ultimately held to be invalid, he could apply to the secretary of state for an extension of time for serving a further notice. If that were refused, it could make a fresh application for planning permission so as to start a new timetable.
Martin Kingston QC and Mr David Park (instructed by the legal department of Herefordshire Council) appeared for the appellants; Robert Fookes (instructed by Coulson Read Lewis, of Hereford) appeared for the respondent.
Sally Dobson, barrister
